Consistent with the President’s focus on preparing every student for success and increasing access to higher education, the National Council on Disability (NCD) takes this opportunity to enlist the Department of Education (ED) in addressing several key issues affecting students with disabilities. NCD is an independent federal agency that advises the Administration and Congress regarding laws, policies, practices, and procedures that affect people with disabilities. As detailed below, NCD is particularly concerned with (1) the lack of monitoring, compliance, and enforcement for students with 504 plans and (2) the school-to-prison pipeline and the disproportionate impact on students of color with disabilities. NCD requests the opportunity to meet with key officials at ED to discuss these important issues. We appreciated the opportunity to meet with Secretary Duncan at the community meeting on March 18, but respectfully request a more detailed discussion as a sister Federal agency.

As the President has continuously stated, a quality education is the foundation of a lifetime of success. However, for many students with disabilities, a quality education remains unattainable. Decades after the passage of the Rehabilitation Act, Individuals with Disabilities Education Act (IDEA), and the Americans with Disabilities Act (ADA), many students with disabilities are still struggling in school. As NCD noted in our 2013 Reporton National Disability Policy: Strength in Our Differences.

The doors to the schoolhouse have been opened, but public school systems have been resistant to changes that support all students in making progress in the general curriculum and ultimately graduating from high school with a diploma, not to mention prepared to enter the adult world of higher education and employment.[i]

NCD seeks to call attention to and recommend greater accountability and better educational outcomes for all students with disabilities – for those students with disabilities that receive general education services, those that receive special education services, and especially for those that receive 504 services. While data is readily available regarding the numbers of special education students with disabilities and their educational outcomes, there is virtually no data on the numbers of students with disabilities receiving 504 plan services, the nature or impact of those services, or the educational outcomes for the hundreds of thousands of students that receive them.

In our 2013 Reporton National Disability Policy: Strength in Our Differences, we analyze the troubling nature of this issue. [ii] Section 504 of the Rehabilitation Act requires local educational agencies to provide accommodations for students with disabilities who qualify for services under Section 504, and who otherwise are not eligible for IDEA services. While the ED’s Office for Civil Rights is responsible for the civil rights enforcement of Section 504 with state and local educational agencies, the Department leaves implementation and compliance to the state level. Consequently, there is no federal or state oversight, monitoring, or accountability for the services provided to students with disabilities that have a 504 plan; nor the educational, and ultimately, the transition outcomes achieved by these students. There are serious budgetary implications for continuing to overlook this issue and ED can play a vital role in addressing this important but long neglected issue.

Finally, NCD seeks to call greater attention to the school-to-prison pipeline for students with disabilities and the disproportionate impact on students of color with disabilities. For more than a decade, NCD has expressed significant concern regarding the school-to-prison pipeline for students with disabilities. In our 2003 report, Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: The Current Status of Evidence-Based Research, NCD noted:

A significant proportion of youth in the juvenile justice system have education-related disabilities and are eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA). Factors associated with the disproportionate representation of youth with disabilities in juvenile corrections are complex--but the available information suggests that school failure, poorly developed social skills, and inadequate school and community supports greatly increase the risks for arrest and incarceration.[iii]

Moreover, our 2011 report, National Disability Policy: A Progress Report found that students with disabilities make up a significant portion of youth in the juvenile justice system.[iv] Alarmingly, some studies show that up to 85 percent of children in juvenile detention facilities have disabilities that make them eligible for special education services, yet only 37 percent receive services while in school.[v] This failure to adequately address the needs of students with disabilities, particularly at-risk students, creates what has been termed “the school-to-prison pipeline.”[vi]

According to ED’s 2009-10 Civil Rights Data Collection (CRDC),

1 out of 8 students in the CRDC sample (12%) has a disability. 4.7 million students are served by IDEA and over 400,000 by Section 504 only. Nearly 18% of students with disabilities are African-American males.

Students with disabilities covered under IDEA are over twice as likely to receive one or more out-of-school suspensions compared to non-IDEA students.

70% of students under IDEA and Section 504 are physically restrained by adults in school.

African-American students with disabilities under IDEA are disproportionately subject to mechanical restraint compared to other students with disabilities. xi

NCD commends the recent Joint “Dear Colleague” Letter to public elementary and secondary schools in meeting their obligations under federal law to administer student discipline without discriminating based on race, color, or national origin. As stated in the letter, the guidelines do not address discriminatory discipline based on other factors, including disability, religion, and sex since they “implicate separate statutes and sometimes different legal analyses.” xii

Since students with disabilities, many who are also students of color, face disproportionate discipline rates, we urge ED to issue similar guidelines specifically on this population.

We agree with the statement in the Joint Letter that, “racial discrimination in school discipline is a real problem” but we would also add that disability discrimination is an equally real problem that requires similar attention regarding data collection and guidance. xii

NCD looks forward to meeting with you to discuss ways to address the above issues to ensure that students with disabilities are given the opportunity to thrive in school and beyond. To schedule a meeting, please contact Joan Durocher, Director of Policy, at 202-272-2117 or jdurocher@ncd.gov.

[iii] National Council on Disability, Addressing the Needs of Youth with Disabilities in the Juvenile Justice System: The Current Status of Evidence-Based Research, Washington, DC: May 2003, available at http://www.ncd.gov/publications/2003/May12003.